Securing the Leg Irons: Restriction of Legal Rights for Slaves in Virginia and Maryland, 1625 - 1791
Slavery In Early America's Colonies: Seeds of Servitude Rooted in The Civil Law of Rome
by Charles P.M. Outwin
Introduction
First devised during the late seventeenth
and early eighteenth centuries, the laws and justice system governing the institution of
Negro slavery in the British North American colonies of Virginia and Maryland
constituted but one element in a complex matrix of coercive instruments designed for
suppression of legal humanity in slaves. Other more "spontaneously" oppressive
cultural devices, such as distortion of religious doctrine or implementation of arbitrary
ethical values, stand (because of their typical logical vagueness) in marked contrast to
the law, which requires definitive legal status for social entities that are to be governed
by established rules and norms of social conduct.
The road to legal definition of slavery was not smooth. The English "common
law," which formed the basis for all Anglo-British and Anglo-American legal practice in
the seventeenth and early eighteenth centuries, was a system that sought to establish
liability through precedent of what had been held liable in previous instances,
distinguishing between entities that were capable of guilt and those that were not.1 These entities are either possessed of legal existence as persons
with rights, or they are things created, possessed, and disposed of by legal persons, actual
or fictional. In other words, it was at least in major part an issue of the assignment of
the right of choice, of a right to exercise free-will. It was this problem in definition of
legal status that appears to have been at the heart of law and legalities regarding Negro
slaves in Anglo-British colonial America; the job was not easy, and full of fatal logical
pitfalls.
A slave auction in which black families were often broken up when sold to slave buyers.
Copyright Chicago Historical Society
If there was any change of status regarding humans held in servile bondage in the laws
of England, Virginia and Maryland during the colonial period, 1625 - 1789, then such
development ought to be evident from examination of court records. Not only that, but
it should also be fairly simple to trace precedent leading up to the establishment of "the
peculiar institution," especially by means of the analysis of documentation evincing the
denial of the slaves' personal legal sovereignty in such liberties as the power to make
contract. Finally, some indication ought to emerge of the dynamic synthesis attempted
by Southern jurists between rigid Roman Corpus Jvris Civilis and mutable common
law practice.
During the period of nearly two centuries between 1605 and 1789, Englishmen living in
America increasingly came to rely on Roman civil code for the legal support of slavery.
Even so, having realized this, it is also very important to understand that this was not
by any means the entire philosophical basis of the slavery imposed on Africans by
Europeans. Indeed, legality was only a very small portion of the overall socioeconomic
justification for slavery, relying as it did on a complicated system of beliefs that is not
within the scope of this paper to address.
Rather, dispositions from Maryland and and Virginia, as presented in Helen Honor
Tunnicliff Catterall's Judicial Cases concerning American Slavery and the Negro (1926
& 1936) are examined and compared for some indication of developments concerning
the legal status of Negro slaves in those Anglo-British colonies. Remarkably, no
biographical notes about Mrs. Catterall could be found, except her dates (1870 - 1933)
and the fact that she was married to a now obscure professor of English, Ralph Charles
Henry Catterall ( d. 1916). Few works referenced her study reference could be found to
critiques of her work or resource to it in bibliographies attending other studies of
American slavery.
Very considerable space is devoted to the creation of an historical Roman, medieval
European and English context for the succeeding discussion of the judicial cases in
Virginia and Maryland collected by Catterall. The majority of court records she exhibits
for the seventeenth and eighteenth centuries in those colonies are lawsuit and probate.
There is a serious hiatus in Maryland's official legal documents between 1771 and 1783.
That colony also had manifestly far fewer slaves than Virginia. Nevertheless, Maryland
has been chosen for comparison with Virginia both because of the age of its records
concerning slavery and for its proximity to the other colony, with which (at first, at least)
it was at some philosophical and legal variance, including the issue of slave status.
The Roman, Medieval European and English Legal Background
Some scholars might find it objectionable to refer to Roman precedent in the
development of Anglo-American slave law during the early colonial period because of
an assumed irrelevance of ancient issues to modern situations. In fact, English and
Anglo-colonial magistrates had received educations steeped in neoclassical humanism.
The seventeenth and eighteenth centuries could arguably be said to be the height of the
Renaissance, when Latin and Greek learning penetrated to far corners of general
education. Thus thoroughly educated in the thought processes of Republican and early
imperial Romans, many American legal scholars learned entire speeches from Marcvs
Tvllivs Cicero by heart and had whole blocks of il Corpvs Jvris Civilis committed to
memory in the original language. Orators sought to emulate Roman rhetoric, legislators
struggled to develop statutes worthy of Roman law and judges aspired to the clarity of
Roman jurisprudence.
Certainly there are peculiar similarities between Roman and American practices
concerning slavery. Even the same term was applied, in translation, to male slaves of all
ages: "pver," in Latin, "boy," in English.2 Slaves were classified in the Roman legal
code as "res," that is, "movable property," a concept a little too conveniently close to
the English legal concept of "chattel." This it held in common with other ancient slave
systems, from pharonic Egypt through Mesopotamia to India and China.3
Thus, the jurists of both Rome and Dixie felt comfortable in describing the legal
condition of slaves, following the example of such jurists as Florentinvs and Vlpian,4 as
one of "dual status." This was completely consistent with the Roman legal concepts of
dvplex interpretatio, "double interpretation," and in vtramqve partem, "argument
from both sides of a question."5 This accepted duality in Roman legal practice is best
illustrated by the essential contrast between ivs natvrale and ivs gentivm. Roman civil
code, even in its most important revisions by Justinian I (527 - 565 A.D.) and Leo VI (886-912 A.D.)
"the Sage" of the Macedonian Dynasty, remained ultimately pagan in
that it dealt with what was understood to be immutable physical conditions, devoid of
salvation by grace or divine charity, except as described below. Liability was established
by means of authoritative, even omniscient pantocrator ("pantocrator" or "all-ruler")
declaration ... the law itself was thus divine. Roman reasoning stemmed from the
assumption that ivs natvrale, the law of nature, was the source of all justice. Under ivs
natvrale, according to the jurist Florentivs (c. 150 AD), "est hominem homini
insidiari nefas esse," which is to say, "it is a grave wrong for one human being to
encompass the life of another."6 All physical or mortal conditions, therefore, including
those of humans, were immutable because they had been so ordained by nature, except
in the wondrously omnipotent act of manv missio,7 the "stretching forth of the hand"
by a remarkably powerful individual, such as (in theory) an aristocratic master or the
emperor. Power had everything to do with the gesture of manumission. Later, Christian
charity was attached to it, but was still secondary to the indulgence in a feeling of
sovereign potency for those who exercised manumission. Slavery was tolerated, not
merely because of ivs gentivm, which was held to be entirely separate from ivs natvrale
... "everybody else is doing it," even though it was clear that slavery was somehow
wrong, but because manumission was an important artifact in Roman religiocultural
doctrine. It was, then, the body of Roman civil law, especially the Corpvs Jvris Civilis
Jvstiniani, to which the courts of colonial Virginia and Maryland were to directly refer
for precedential support in the establishment of slavery.8 Even the notion of slavery as
a "peculiar institution" translates with ease into Latin, as pecvlivm institvtio, and
would not have been incomprehensible to Roman jurists of the middle and late
empire.9
Plantation slavery and urban slavery existed in Rome, although the latter attained a
more advanced and long lasting state there than in North America. American slaves
had social functions similar to those of Rome, even extending to the assignment of
positions in skilled craftsmanship, concubinage and domestic management. Like
Christianity in America or Confucianism in China, Roman-style Stoicism as practiced
by such adherents as Seneca10 sought to exert a humane influence on some aspects,
sometimes, of the day-to-day administration of the institution, but none succeeded in
ameliorating the basic inhumanity of slavery.
On the other hand, American slaves never achieved exalted status as governmental
bureaucrats, corporate stewards or legal functionaries ... but this may be attributable to
the fact that, by comparison, American slavery as an institution did not last anywhere
near as long as that of Rome or the Byzantine empire that inherited and perpetuated it
to the very end in 1453 A.D., only thirty nine years before Cristobal Colombo sailed on
his first voyage to the New World. Neither did Dixie ever achieve as liberal a level of
manumission and social transformation for freedmen as Rome did, in spite of any
racial considerations. Roman slavery as an established, viable institution was already
more than six hundred years old by the time the empire first came to be. American
slavery, in comparison to that practice in the Mediterranean region or China, never
attained the social development whereby slaves were incorporated into every sector of
society. The civilization of the American South up until 1860, though gracious,
remained primarily agrarian and rustic, in spite of the existence of such comparitively
modest urban centers as New Orleans, Richmond and Charleston ... and had a long way
to go before emulating the impact of imperial China or Rome.
Slavery in the early Middle Ages of north-western Europe (coexisting with the legally
somewhat less onerous serfdom) was more similar to the agrarian form familiar in the
United States, but in England and France the practice faded away between c. 1100 and
c.1350. Throughout the period, slaves on the European mainland remained legal
Things, in conformity with the remnants of Roman civil code, and as demonstrated in
the Spanish Code de Tortosa (1272). They were also believed under the influence of
Christianity, to be possessed of a salvageable soul which could only theoretically attain
human status through conversion.11 Thus, although native slavery virtually
disappeared after the depredations of the Black Death, Christian Iberians began again to
keep unconverted Moors and Africans as slaves at the close of the fifteenth century. 12
The northern Spanish and Portugese of Barcelona and Lisboa, along with the Italian
Genoese and Venitians had come into contact with the laws and customs of revered
Constantinople via the Mediterranean trade routes, and tried to emulate her style.
When Byzantium at last fell to Muhammed II and his Ottoman Turks, her
philosophers and legates fled not only to Venice, Florence, Milan, Paris, Rome and
Palermo, but to Barcelona, Madrid and Seville as well. Much of the devolping laws for
the newly powerful principalities of Aragon and Castille depended upon the wisdom
and guidance of expatriate Byzantine jurists. Soon, the newly united Spain would bring
its version of Roman civil code, including that regarding slaves, to America.
Even so, slavery was not an open-and-shut case in late medieval Europe. Earlier,
Thomas Aquinas (c. 1256) offered arguments that, because it was not present in man's
original sinless state, that slavery could not be in the soul's best interest. Though
slavery, in other words, ran contrary to free will in his estimation, Aquinas subscribed
to the prevailing cosmology of a hierarchically ordered universe and social order, and
acquiesced to the Canon Law acceptance of slavery, mitigated only by conversion and
baptism. In England, the friend of Henry VIII's youth, Sir Thomas More (1516),
incorporated an acceptance of slavery into his Utopia, although he believed himself to
be describing a perfect English society.
The basic contradiction between the twin bodies of Roman natural and national legal
theory was intensified by their contact with English common law. This system (by
contrast to Roman concepts of rigid stasis) originated in primitive Anglo-Saxon
Germanic tradition that understood all reality to be in a state of never-ending flux, thus
producing a changeable physical and social order. One need only examine such early
Anglo-Saxon literature as The Wanderer (c.800 AD) or The Ruin (c. 600) to appreciate
the truth of this statement. Such a condition made the English common law system
amenable not only to constant in promptv revision, but also to the Christian doctrines
of free-will and charity. It is only logical that the clash between Roman code and the
common law over slavery in the American setting should therefore produce intense
debate over three centuries regarding the a relative weakness of some sort of "dual
status" before the law for Negro slaves.
Jurisdiction over slaves had been left by ancient Roman judges by and large in the
hands of the slave owners. This arrangement would have suited most post medieval
Anglo-Americans in the southern colonies and states well, ... had it not been for the fact
that Roman and British practices differed strikingly in their formulations. Whereas
Roman law was generally conceived as rigidly authoritarian code, British law usually
followed the ancient Germanic practice of relying on an accumulation of malleable
precedent. Thus, British law (in its primitive form at least, regardless of the ancient
Romano-Germanic concept of "servi" or servant-obligation) was subject to constant
revision, and, as a consequence, so was definition of legal status. Roman civil code
evinced no such flexibility.
Thus, an abyss yawned between
legal theory and common practice. Marc Bloch (c.1944) has written that
Economic conditions precluded the exploitation of excessively large demesnes without
the help of hired hands or workers maintained in the lord's household.13
How were these manpower needs, then, to be met? This was a situation which
remained unresolved during the seventeenth and eighteenth centuries in British
North America.
In 1569, it was resolved by in a court of common law that "England
was too pure an Air for Slaves to breath in." 14 This highly ambiguous statement cuts right to the core of the dilemma facing Anglo-British law concerning slaves: does it mean that slavery is
not to be tolerated among the English, or is it implied that slaves are not worthy of the
same air free English people breath? Perhaps it was understood by some people to be
both things at the same time. That conclusion nonetheless is of no assistance at all to a
jurisprudence, which requires clear definitions.
Exactly this sort of contention over definition of slave legal status continued in
precolonial English and Anglo-American courts over the succeeding centuries. In the
case of Butts vs. Penny (1600), it was found that "there could be no Property in the
Person of a Man ... but by Compact or Conquest,"15 a concept with clear connections to
the Corpvs Jvris Civilis . But in the very next breath, the same court hastily added "that
Negroes being usually bought and sold among Merchants, so Merchandise ... there
might be property in them ...." 16 This will appear to be sheer hypocrisy to some
observers. In fact it is completely in careful keeping with precedent oriented common
law judgment which, when legal antecedent was lacking, looked to other sources for
indications of social norm. In America, Roman code would prove to be such a source.
Many "well-bred" Southern gentlemen by the time of the late seventeenth through the
nineteenth centuries, particularly those destined to be upper level judges, magistrates
and legislators, were habituated by their education to Roman models and thought as
well as to the works of Aquinas and More. This was simply part of the standard
curriculum for the children of the elite for that age, passed down from the likes of those
late medieval scholars. They must have known that the central article of Roman law
regarding slaves was that they were inferior by nature. 17 They also knew that Roman
masters had the right to punish slaves at will, no matter how important that slave
might be socially. In theory, a solid cosmological wall separated Rome's slaves and
citizens, wherein freedom was confined only to free men, as confirmed by the Senate in
AD. 56, an act of which American legislators appear to have been aware. To set a slave
free reflected upon the freedom of all Roman citizens, for the liberty of freedman must
be defended by all in order to ensure the freedom of all. Thus, setting a slave free was a
tremendous responsibility as well as a powerful prerogative ... risky indeed, but one
Romans were prepared to take. Southern Anglo-Americans eventually and evidently
would not be so ready. It took a while for Roman civil code to begin to effect the
common law's dealings with slaves.
Another English court, 18 drawing on local practice, in 1682 found precedent supporting
the property status of slaves in a judgment handed down in British India, but
nevertheless found them by common law usage to be special cases, and handed them
over to an administrator who was to see to their Christian conversion, and subsequent
enfranchisement. Only toward the turn of the eighteenth century did attitudes toward
slaves, especially in the West Indies, begin to harden on official account of their
supposed reprobate heathenism. Legislators reinforced this judgment with long
accepted biblical concepts, such as that of the God-punished OEebed or slave, condemned
forever to servitude because of disbelief. Perhaps more realistically, strictures upon the
slaves had been tightened simply because of their increased economic value as sugar
plantation workers. The logical noose had begun to tighten on the neck of
Anglo-American law.
The question of definable humanity in the slave continued to plagued the courts.
Though his Negroes were impersonally "salable," an owner was not allowed arbitrarily
to kill one "as he could an ox." 19 Indeed, in 1706 it was determined that "the common
law takes no notice of negroes (sic) for being different from other men. By common
law no man can have property in another, except in special instances ...."20 The opinion
handed down by Sir Philip Yorke, Attorney-General of the realm at the end of 1729,
stated that
a slave, by coming from the West Indies, either with or without his master, to Great
Britain or Ireland, doth not become free; and that his master's property or right in him
is not thereby determined or varied; and baptism doth not bestow freedom on him, nor
make any alteration in his temporal condition in these kingdoms.21
This was an unfortunate decision, because by then American and British legal practice
had already begun to diverge along the lines of economic expediency, supported by
resort to Roman civil code. American courts in the South were to look more and more
to Roman law concerning propertied interest for antecedents.
The common law, then, had become victim of its own flexibility, because in the search
for legal precedent in dealing with slavery, jurists and legislators in the American
colonies, as we shall see, ventured into the nightmare labyrinth of Byzantine-Roman
legal code. The framers of the United States Constitution, many of them well versed in
both English and classical Roman law, would leave open legal questions about federal
regulation of slavery, thus fettering by reservation (if one may be permitted to use
Hobbes' terminology) the development of effective federal policy toward slavery, and
thus a uniform equality for all citizens. Legislation modeled on that of Rome was
enacted mostly at the provincial level. In ignoring the discrepancy between love of
liberty and the mercantile exploitation of human bondage, they were only emulating
their philosophical and jurisprudent predecessors. The generation of Anglo-Americans
born in the 1840's would pay the greatest price in blood for this hesitancy.
When, just prior to the Civil War, one of the foremost American jurists of the time,
Thomas Reade Root Cobb of Georgia, inquired into the nature of legal status for slaves,
he found himself forced to be an apologist for, even to dissimulate somewhat regarding
what was still an unsettled dilemma. Cobb was a Southerner in favor of slavery, but at
the same time a scholar concerned with intellectual honesty. In his evident discomfort,
he resorted not unsurprisingly to the example of the Ancient world both for
justification and for evidence of the advancement of slavery in the United States over
what he termed the "absolute" slavery of Rome and Greece. In his significant study,
An Inquiry into the Law of Negro Slavery in the United States of America (1858), Cobb
argued that the Roman slave was not merely a res or chattel, but lacked all recognition
as a person. While this was true for the condition of a person while still a Roman slave,
Cobb ignores the fact that manumission was common in the extreme, and that recent
freedmen were frequently assimilated to society at a very rapid pace. Furthermore, the
Georgian jurist stoutly maintains that the African-American slave occupied "a double
character of person and property," 22 very much as though this duality were evenly
balanced. As the court cases reviewed in the sections following reveal, this was certainly
not the case. Cobb also rather glibly observed that "the Colonies having adopted the
common law, and Negro slavery having no existence in Great Britain, there could be
necessarily no provision of that law in reference to it, and consequently the power of the
master until limited by legislation was absolute." 23 Thus he appears both briefly and
succinctly to dispose of the power of precedent in common law, its possible extension to
the slaves, and the legitimacy of British decisions as any sort of precedent in American
courts, even though certain rulings outlawing slavery in England predate the American
rebellion and revolution. Finally, in Chapter VI, "Of Personal Liberty," Cobb states
flatly that
the right of personal liberty in the slave is utterly inconsistent with the idea of slavery,
and whenever the slave acquires this right, his condition is ipso facto changed .... So
long as two races of men live together, the one as masters and the others as dependents
and slaves, to a certain extent, all of the superior race shall exercise a controlling power
over the inferior. 24
This was to be done (again, significantly, resorting to Roman code) via verberibvs
flagellis, aliisqve pnis 25 ... that is, by means of beatings, whippings or any other similar
form of violent and mutilative punishment or humiliation. Sociologically speaking,
this then illustrates clearly that the South had become a society that was been compelled
to resort to the use of coercive force because of the ultimate failure of law to support or
enforce subservient behavior in slaves. The power of states rests on the threat and use
of force "to maintain order and provide for the common good."26 On the one hand,
seventeenth century English society employed more or less subtle and efficient forms of
discrimination and bias designed to support the status quo ; on the other hand, it must
be admitted that what legal restrictions there were upon the lower classes could be
circumvented, and were not intended to subjugate, but to arbitrate between conflicting
interests and protect English society as a whole against outside foes.27 If so, slaves might
be set free if they were perceived as more valuable to the commonwealth in liberty than
in bondage. This was not to be the case in the Anglo-American South.
Before one rushes to condemn Cobb for hypocrisy and perversion of the law, there is
another factor to consider: the honorable Georgian jurist's formulation of a "dual
status" for slaves is completely consistent with Roman legal concepts, then accepted as
precedent in courts of common law. Further, a clear connection between the English
and Roman systems existed in the concept of property, of "chattel" on the one hand
and res on the other. Further, common law often considered labor and the laborer to be
property.28 This was reinforced by the Common law's expressed need to distinguish
between things capable of guilt and not capable of guilt.29 Because in common law
liability was established by what had been judged liable before, due to the changeability
of human condition, Southern jurists found it comparatively easy to synthesize from
this mishmash of flexible common law definition and Roman authority used in place
of precedent a supposedly, legally sound "dual status" for slaves.
The arrangement proved weak because, for many Christian Americans not versed in
Roman jurisprudence, neither slavery not dual-status reflected divine intention.
Religious and biblical supports for slavery were deemed narrow and thin, and Southern
clerics were often perceived as having had to twist the scriptures in order to get the
intended effects of subjugation required by the slave owners who paid their wages.
Further legitimation for the system still being needed, force was used by Southern slave
owners to make up for these legal and dogmatic weaknesses. The pretense of power
latent in a state's legal authority, noted before, was forced to become manifest in the
whip and branding iron, borrowed, not surprisingly, from Rome. This became obvious
to many as secession and war approached, not only in the North but in Europe as well ...
but not, by and large, in Dixie.
None of this is meant to imply that slavery in the British North American colonies or
the new United States did not have unique characteristics, making it noticeably different
from systems of compulsory servitude that went before. Even so, there were not only
similarities but intentional evocations between Roman slavery in particular and that of
North America. American jurists fell heir to legal concepts from Roman jurisprudence
by way of the judgments handed down during the fifteenth and sixteenth centuries in
the Byzantine, Latin and Islamic periphery of Europe: Byzantium and its Latin Empire,
the Ottoman Balkans and Kievian Russia.30 Thus, it may be argued that there is a
continuity of cosmology from the ancient Mediterranean world to the plantations of
Dixie, wherein slaves were held to be slaves forever, utterly unable to perform that
most critical act of freemen in common law, the making of free-will commitments,
such as marriage or contracts. Slaves they would remained, born, bred and buried ... or
might they not? Soon the fires of moral contentiousness over the dubious legitimacy of
these laws would begin to smolder.
One last problem appears worth mentioning, but only through comparison of the
long-term records of both England and the American colonies: an apparent relative lack
in the latter of legally trained personnel. In England a separate specialized Court of Laws
Merchant had existed since the mid-fourteenth century; solicitors and attorneys
abounded in London and other provincial capitols who already specialized. Not so,
transparently, in the American colonies. All briefs, at first, were heard by the same
courts, staffed by people who too often had a rather rudimentary notion even of
common law or legalistic spelling. In the proprietorships, it was a relatively straight
forward matter of presenting one's case to the attention of the Grantee. In Virginia on
the other hand, where independent government structures developed fairly early
because of the failure of the Virginia Company and from imperial neglect, additional
courts, often in some way appellate, were established in order to deal with contested
decisions and stubborn cases. All mercantile briefs for a long time were heard by the
same justices who decided murders and probate, and who had perhaps a better notion of
what to do with the makers of mayhem and with sullen heirs than with rarefied
definitions of humanity and legal status. Thus overwhelmed, it would be no wonder
that some poorly trained judges might defer decision if possible, or rely on common
social usage, than to risk error by dabbling in matters beyond their understanding. Thus,
the establishment of disastrous precedent concerning trade in human flesh may have
inadvertently been aided by the desire to avoid legal error.
Cases in Virginia, 1625 - 1789
A court held in Jamestown on 19 September, 1625 very carefully handled an enthralled
Negro brought to its attention as an indentured servant.31 Those very early English
colonists were acutely aware that they themselves had signed on as servants to the
Virginia Company, which still existed in that year and to which they had a continuing
contractual obligation. Certainly pro forma, as well as in favorem libertatis, they
wished to impress the directors of the company with their ability to be civilized and just
in a distant and presumably savage land. It was probably also the only and last time for
hundreds of years that the Anglo-Americans of Virginia treated a recently arrived
African as anything approaching a legal equal. They had, after all, come to America in
the naked if rather naive hope of gain, and too many were determined to get away with
whatever exploitation they could devise.
In fact, the first twenty "Negar" slaves had arrived from the West Indies in a Dutch
vessel and were sold to the governor and a merchant in Jamestown in late August of
1619, as reported by John Rolfe to John Smith back in London.32 By 1625, ten slaves
were listed in the first census of Jamestown. The first public slave auction of 23
individuals, disgracefully, was held in Jamestown square itself in 1638. What were to
become the parameters and properties of the "peculiar institution" were defined in the
Virginia General Assembly from about 1640 onwards. Negro indenture, then, appears to
have been no more than a legal fiction of brief duration in Virginia. Black freedmen
would live in a legal limbo until the general emancipation in 1864, unable to stand
witness in their own defense against the testimony of any Euro-American. The General
Court dispositions that appear after 1640 seem to support this contention. Barbados was
the first British possession to enact restrictive legislation governing slaves in 1644, and
other colonial administrations, especially Virginia and Maryland, quickly adopted
similar rules modeled on it. Whipping and branding, borrowed from Roman practice
via the Iberian-American colonies, appeared early and with vicious audacity. One
Virginian slave, named Emanuel, was convicted of trying to escape in July, 1640, and
was condemned to thirty stripes, with the letter "R" for "runaway" branded on his
cheek and "work in a shackle one year or more as his master shall see cause."33 Shades
of Rome! This was most certainly not a contractually obligated indentured servant,
however oppressed but consistent with English common law, that could expect release
from his contract after a time. Rather, this was an abject slave, subject to the court's
definition of him as mercantable and movable "property," as chattel or res, and to his
master's virtual whim. Indeed, the general assembly of Virginia in 1662 passed an act
which directly and consciously invoked Justinian code: partvs seqvitvr ventram,
whereby a child born of a slave mother was also held to be a slave, regardless of its
father's legal status.34 A few years later, the population of Africans in bondage in
Virginia reached about 2,000, and another statute (1667) established compulsory life
servitude, de addictio according to Roman code, for Negroes ... slavery had become an
official institution.35
But that same issue of personage versus bondage had not been silenced. While in 1671, a
"negroe weoman" was included in a delivery of crops, as though she were part of a
cargo of produce,36 the very next year an African named Edward Mozingo successfully
sued the man to whom he had been indentured for twenty eight years, being declared "
free to all Intents and Purposes."37 These cases, and others like them, seem to indicate
that in the late seventeenth century, it was becoming customary under Anglo-Virginian
common law to treat Africans according to the status they appeared to be possessed of
when they came under the court's jurisdiction. Was that one brought in as a slave?
Then it was only a piece of property, having no legal status in and of itself. Did this one
come under contract to the colony? Then this person was potentially free, because of his
or her power to make contract. Yet common practice and legislation was, as has been
seen, already beginning to erode the freedman's rights. The court opinions began to
express well concealed confusion. In April, 1674, a court concluded that
upon the Petition of Capt. John West ... Concerning A negro woman called black mary
purchased by the said Administrators from Coll. John Vassall, It is ordered that the Said
negroe woman returne to her service, And it is ordered that the Administrators ... with
the first opportunity take Care to write to Coll. Vassall to know whether the said negroe
woman was a Slave or free, and if Appeare she was noe slave when bought, then they to
pay her for her Service what this Court shall Adjudge.38
Obviously, the judge for this case, in his uncertainty about what status to accord Mary,
put the burden of proof on the men claiming ownership of her to show whether or not
she was indeed "property." Careful examination of the wording of the judgment,
however, reveals that the court was already biased (in keeping with Roman precedent
in ivs gentivm, perhaps) toward the interests of the "owners;" it was upon Colonel
Vassall's word alone that Mary's incipient liberty or endless enthrallment depended.
The next thirty-odd years, according to the cases cited in Catterall's study, witnessed a
further astriction of legal opinion regarding slave status. In the view of Judge John
Holloway in probate court of 29 March, 1718, a "Mulatto Girl Sue" and her children
were treated as heritable property in which the executors had right of ownership "
because it must immediately vest in somebody."39 There was never any question at all
that it might vest in Sue herself ... she was purely property, because of "Virginia Law
1705,"40 and therefore without rights.
Though the matter appears to have deteriorated over the next fifty years, the issue of
slave status still would not die. The cases of Gwinn v. Bugg (1769) and Howell v.
Netherland (1770) had complicated judgments concerning the termination of
indenture. Both involved misogyny and the confusion of legal status for the off-spring,
with which legislative action in 1691, 1705, 1723, and 1753 had not dealt effectively. In
both instances, the court ruled in favor of the plaintiffs suing for their freedom, though
with evident reluctance and a desire that the legislature should resolve the matter of
nati natorvm et qvi nascentvr ab illis, whereby the status of the grandchildren of
misogynous unions could be determined with certainty.41 Otherwise, any slave was "
distinguished as lands, the slave being worth as much as the ground he cultivates. For
this reason our laws have put them on a footing with lands ...."42 There is a
psychological symbolization expressed here as well as a legal opinion: the slave was no
longer even upright like other human beings, but at one with "every creeping thing
that creepeth upon the earth," to quote Genesis, 1: 26, in the Standard Authorized or
"King James" Version.
When a certain Charles Moorman died in 1778, he started a series of litigations that
would apparently go on for nine years: in his will, he sought to free his slaves. It was
argued that the "laws of the land will not admit of such freedom,"43 and it took a
special act of the commonwealth's general assembly in 1787 to carry out "the benevolent
intentions of the said Charles Moorman," making them immediately free,
as if born so; and their increase were also to be free. All
under twenty-one and eighteen were to be free when they attained those ages, and the
increase of those free at a future period were to be free with the parents ... This was ...
pursued by a majority of the Court.44
What happened, to bring about what appears to be this legal anomaly, in a system that
increasingly denied Negroes any humanity at all? Perhaps it was simply because of the
fact that the gesture came from the commonwealth's legislature, to which the lower
courts looked for guidance. Possibly, the law makers also wanted to signal solidarity
with the libertarian ideals of the recently ended war of rebellion. In any case, the courts
quickly returned to their accustomed modvs operandi.
Cases in Maryland, 1642 - 1784
On Munday 19th Sept. 1664 ... came a member from the lower howse that the upper
howse would pleased to drawe up an Act obligeing negros to serve durante vita they
thinking itt very necessary for the prevencion of the dammage Masters of such Slaves
may susteyne by such Slaves pretending to be Christened And soe pleade the lawe of
England.45
Before the day was out, the desired act was drawn up, amended and passed by both
houses. Its language carefully avoided mention of the possible enfranchisement of
slaves through conversion, but came down very hard on indentured Anglo-British
women who wanted to marry African slaves: their children would not become free
when her indenture was over, but would be slaves for life, in partvs seqvitvr ventram,
"as their fathers were."46 This was only a couple of years after Virginia passed similar
legislation. Yet for a very long time, Maryland court language was very careful to avoid
the use of the word, "slave," even though a majority of the cases appear to be lawsuits
involving the transfer of Negro servants and a great deal of tobacco as part of the
awards. The legal establishment of slavery would take somewhat longer in Maryland
than in Virginia, perhaps due to the mitigating influence of the Calverts, the Roman
Catholic proprietors of Maryland, headed by their Lord Baltimore.
Although that law binding the slave children of indentured women was repealed by
Lord Baltimore himself in 1681, to accommodate one of his family's favorite servant
woman, "Irish Nell," her descendants, William and Mary Butler, were in 1770 defined
as slaves. Nothing they could do by lawsuit appeared to be able to overcome the doctrine
borrowed from Roman civil code that by then had come to prevail in most other
slave-holding areas. Petitioners to the Provincial Court were more successful in the
1780's and 90's, but only if they could prove without stretching the rules of evidence too
much that a fairly recent grandparent had been a free-born Europeans. Emancipation
was a little more liberal in Maryland than in Virginia, in that light skinned slaves often
had only to offer proof "by hearsay" that some ancestor had been free, and that slaves
could be liberated "by intention" in their owner's wills, even though certain
qualifications had not been met. Nevertheless, it was the effort of some legislators to
distance their province from the provisions of the original charter granted to Sir George
Calvert, that colonial law and custom should "be agreeable to the rights and customs of
England."47 Slavery never became institutionalized in England as it did in Maryland or
Virginia, where what amounted to a slave code in the rigid Roman style was to grow up
that often conflicted with the spirit of precedence in common law.
Indian slavery seems to have occupied most of the attention of the courts in Maryland's
first decades, much more so and later than Virginia, although Negro slaves were about
as well. Very early, all "servants" appear to have been classed with livestock, if the
abundance of lawsuits and bonds are to be believed. The function of the courts seems to
have been a much more forthright exercise in common law. Perhaps this is because
Maryland was a poorer province than Virginia, or because most early courts were
presided over by one of the Calverts.
An appalling case of the killing of a defiant slave via verberibvs flagellis, aliisqve pnis
in 1658, described in some detail in the record of testimony,48 attracted an official
inquiry and fine by the colony's proprietors. The point made was that the slave had
been treated with excessive brutality by his master, and that the court found this
reprehensible. Certainly, Africans in Maryland, slave or free, were held responsible for
murder, and likewise (as in England and Virginia) a European could not kill an
African without penalty.49 But did such decisions establish legal status for slaves? The
record up until the year 1665, as set down by Catterall, is not at all clear.
A significant enactment in October of that year by proclamation of Philip Calvert
established "that noe person ... shall trade barter, commerce or game, wth (sic) any
servant, except hyred servants, within this Province, without Lycence first had ... from [
their ] master."50 This is the first clear indication in these records that slaves were
denied the right to make contract, and thus lacked one of the primary attributes of
freedman status.
Edward English, a Negro slave, exhibited his petition for freedom to the Baltimore
County Court in May, 1681.51 His case represents an interesting reinforcement of what
has been revealed before in this study: his translation from slave to freedman depended
upon the establishment of a contract he had made with a man who inherited him. The
language of the disposition is very careful and specific. Whereas in Virginia, English's
capacity to make contract in the first place would probably have been denied, and the
case dismissed, the Baltimore court, surprisingly, responded by classifying English an
"Orphan," and freeing him! This, however, was in keeping with the spirit of common
law, clearly showing how human freedom in Maryland at least, in those days, could be
dependent on an act of personal sovereignty, such as the making of a legal
commitment.
In the 1680's, the courts became less squeamish about employing the word, "slave,"
regarding Negro bondsmen. This occurred in connection with the commission of
heinous crimes, where the punishment became life servitude as slave. It also seems to
have been coincident with a more forthright treatment and appraisal of African slaves
as chattels. Ann Smith, "a Spinster," was condemned to death in December of 1696 for
the murder of a Negro boy ... but was reprieved.52 The next year, what seems to be an
African-European couple and their "mulatto" child were sold and fought over,
without any regard for their possible legal rights.53 Thus, as the century turned, any
rights Negroes had under the relatively liberal administration of the Calverts in the
seventeenth century drained away into the abyss of economic expediency. Even the
names of individual slaves, noted previously as a matter of course, begin to vanish
from the dispositions.
The rate of incidence in crime punishable by death among the slaves also began to rise,
according to Catterall's collection. Whereas most cases before the courts previous to 1700
had been lawsuits, the next ninety years saw a definite increase in the number of slaves
condemned to death. Death
sentences for African bondsmen increased almost four-fold from the 1740's through the
1760's, from 7 instances to 26, a rise of nearly 371%. During the same period, there were
no death warrants issued for slaves only 33.3% of the time: for five years in the 1740's,
three in the '50's and two in the '60's. The decade average rose from below .7 warrants
issued at the end of the 1730's to almost three by 1770. Sixteen out of thirty years saw two
or more slaves executed for their crimes. This represents far more cases in Catterall's
Judicial Cases for Maryland than those of masters condemned in any way for harming
their slaves.
One is tempted to wonder if the increase in slave crime was in response to the loss of
what little legal status they had enjoyed before, and the insensitivity with which they
were traded. There was, in fact, a statute enacted in 1752 that denied the validity of
manumissions executed in the master's last illness, but otherwise there is no indication
of the truth of such speculation in Catteral's work.
By a remarkable decision in 1760 concerning a Guinea native named "Captain Gray,"
the court opined his complaint groundless, that he could not be a slave because he was a
freeman stolen from the African coast.54 Even though his status there may have been
classified as free, nevertheless because of a theft he committed on board the slave ship as
he was delivering others into bondage, he was not redeemed by his employer in Guinea.
This reinforced the precedent of slavery-as-punishment established earlier in the
century in Maryland. It was also a further erosion of legal status, in that it accepted
uncritically as precedent the supposed common practice of Guinea chieftains, in ivs
gentivm one supposes, of selling thieves into slavery.
Seven years later, a key opinion was handed down wherein the estates of two mulatto
brothers were declared escheatable because they were considered bastards, even though
their parents had been married and they themselves had attained freedom. Even so, the
judge assumed that the parents had been slaves, and, falling back again on Roman civil
code as so many Virginia jurists had already, declared that since slaves were incapable of
contracting marriage, that their offspring thus "had no civil capacities to take by
purchase, or take or transmit by descent, whilst in their original state of slavery."55 Not
only had slave rights been eliminated, but freedmen's rights of contract and ownership
were now to be in jeopardy.
One surprise remained in the century. Mary, a slave living in 1791, petitioned the courts
for her freedom, and won. The victory for her must have been particularly sweet, for as
the daughter of William and Mary Butler (page 17) she was thus the direct descendent
of Irish Nell. She, whose parents had been forced back into enthrallment in 1770, finally
achieved the status that Lord Baltimore had wanted for all of Nell's posterity.56 Most
other slaves, by the turn of the nineteenth century, were not to be so fortunate; only two
others were granted their freedom by the courts before 1800.
Summary
The landmark judgment in the case of Somerset v. Stewart in England, decided by Lord
Mansfield in June of 1772, declared:
the state of slavery is of such a nature, that it is incapable of being introduced on any
reasons, moral or political; but only by positive law, which preserves its force long after
the reasons, occasion, and time itself from whence it was created, is erased from
memory: It's so odious, that nothing can be suffered to support it, but positive law.
Whatever inconveniences, therefore, may follow from a decision, I cannot say this case
is allowed or approved by the law of England; and therefore the black must be
discharged.57
Thus slavery could not exist in England, regardless of socioeconomic implications, and
the final push for statutory abolition began, culminating a half century later an the
empire-wide ban. But in America, by 1789, this decision appears to have had little effect,
in spite of the expressed delight of anti-slavery Quakers. The statutory legal structure
built up over the past century and a half effectively restricted the liberating benefits of
common law to Euro-Americans exclusively. The Negro slaves had by 1790 reached
their full definition as dehumanized marketable commodities. A lawsuit in that year, in
Virginia, apparently was brought for satisfaction in the transfer of a group of "11
negroes belonging to Benjamin Pynes ... i (sic ) saw them when down the country, and
offered him 330 pounds for the whole."58 This sounds more like a trade in dry goods or
agricultural products than in human lives, and there is no reason to believe that the
participants in this transaction saw it as anything but a simple and straight-forward,
absolutely amoral business deal.
The slave in the new United States of America was now legally indeed and
irredeemably a Thing, not a person. Testimony from only one Caucasian witness was
needed to convict a slave, who was not able to act in his or her own defense. English
common law, as practiced in America, had been made to accommodate incompatible
Roman civil code as precedent. The expedient and convenient Roman concept of "res"
had (in spite of Cobb's legal objection to the contrary) been accepted completely in
socioeconomic common practice, in ivs gentivm, and the courts supported the
institution.
In thus eliminating the slave's right to exercise free-will, and replacing it with a "dual
status," Southern jurists said, in effect, "slave, your body and its capacity to labor, de
addictio and in partvs seqvitvr ventram, do not belong to you. Yet we are forced
because of various circumstances, especially in favorem libertatis et de spiritvm
inhærens natvrale, to recognize that you are apparently possessed of free-will that you
are capable of using. Should you choose to seize control of this body for your own
purpose in the commission of a crime (such as stealing that body from its owner by
attempting escape, or by using it to kill another body) you will be held responsible for
that crime. Correction will be brought about via verberibvs flagellis, aliisqve p nis, to
the extent that in some instances the body may be executed, that the ill-choosing
free-will may be removed from the presentation of threat to ordered society."
Hypocritical, erroneous or just plain unwieldy this logic may be, but it is hoped that this
study has given an indication of the long process by which such reasoning developed
and was supported in the slave holding provinces of British North America.
The institution of slavery in the United States of America appears to have been
continuous with that of ancient Rome, by way initially of the Byzantine Empire which
passed its practice and laws concerning slavery on to the Iberian nations before its
demise in 1451. Through enslavement of American aborigines de conquisitvs and
Guineans de contractvs after a fashion, the practice was spread to other Europeans who
wanted to profit from the lucrative trade to the monstrous operations in Iberian
America. The institution spread laterally and rather slowly to the east coast of North
America, where it came in contact and conflict with English common law. To support
the spread by socioeconomic infiltration of slavery, American jurists quite logically
appealed to the civil law of Rome when they found precedent lacking in common law,
even though legal scholars back in England came to a different conclusion.
By 1800, anyone living in the southern United States with a high concentration of
epidermic melanin was assumed a slave, unless by more or less difficult documentation
that person could prove conclusively otherwise. The continuing uncertainty of the
common law demanded the exposure of such proof. But even though slaves suffered
horribly, it was the logical noose on the Anglo-American law's neck that tightened the
hardest. Eventually, a subconscious recognition of the unworkable nature of "dual
status" prompted extreme paranoid defensiveness in some southern Anglo-Americans.
This disease would not be relieved soon, and then, only by the coincidence of gory
cultural self-mutilation inflicted by civil war, some of whose helotist seeds were planted
ages before northern Europeans ever reaped such noisome fruits on North American
shores.
Catterall, Helen Honor Tunnicliff. Judicial Cases Concerning American Slavery and the
Negro, vol. I, Cases from the Courts of England, Virginia, West Virginia, and Kentucky,
and vol. IV, Cases from the Courts of New England, the Middle States, and the District
of Columbia. Washington, D. C. : Carnegie Institution of Washington, 1926 & 1936. [ abr.
in NOTES as "HTC, I" and "HTC, IV".]
Cobb, Thomas R. R. An Inquiry into the Law of Negro Slavery in the United States of
America. Philadelphia : T. & J. W. Johnson & Co, 1858. Excerpted in Rose (see below).
Justinian I, "The Great" (483 - 565 AD). The Digest of Justinian. Latin text edited by
Theodor Mominsen and Paul Krueger; English translation edited by Alan Watson.v. I.
Baltimore: Johns Hopkins University Press, 1985.
Reinsch, Paul Samuel. "English common law in the American colonies." Ph.D.
dissertation, University of Wisconsin, 1889. NY : Da Capo Press, 1970.
Secondary Sources
Ariès, Phillipe and Georges Duby. A History of Private Life, vol. I, From Pagan Rome to
Byzantium. Edited by Paul Veyne, translated by Arthur Goldhammer. Cambridge, MA :
Belknap Press of the Harvard University Press, 1987.
Berger, Peter L. Sociology : a biographical approach. NY : Basic Books, Inc., 1972.
Bloch, Marc Leopold Benjamin. Feudal Society (La Societe Feodale. La formation des
liens de dependance. Les classes et la gouvernment des hommes). Chicago : University
of Chicago Press, 1961.
Brackett, Jefferey Richardson. The Negro in Maryland : a study of the institution of
slavery. Freeport, NY : Books for Libraries Press, 1969.
Bridenbaugh, Carl. Jamestown. New York, NY : Oxford University Press, 1989.
Chase, Harold W., editor. The Guide to American Law : Everyone's Legal Encyclopedia.
St. Paul, MN : West Publishing Co., 1983
Davis, David Brion. The Problem of Slavery in Western Culture. Ithaca, NY : Cornell
University Press, 1966.
Dockès, Pierre. Medieval Slavery and Liberation (La liberation medievale). Chicago :
University of Chicago Press, 1982.
Finley, Moses I. Ancient Slavery and Modern Ideology. NY : Penguin Books, 1983.
Greene, Lorenzo Johnston. The Negro in Colonial New England. NY: Athaneum Press,
1971.
Hofstadter, Richard. America at 1750 : A Social Portrait . New York, NY: Vintage Books /
Random House, 1973.
Holmes, Oliver Wendel. The Common Law. Boston : Little, Brown and Co., 1938.
Jolowicz, Herbert Felix. Roman Foundations of Modern Law. Oxford : Clarendon Press,
1957.
Kirschenbaum, Aaron. Sons, Slaves and Freedmen in Roman Commerce. Washington,
DC : Catholic University of America Press, 1987.
McColley, Robert. Slavery and Jeffersonian Virginia. Urbana : University of Illinois
Press, 1964.
Mullin, Gerald W. Flight and Rebellion : slave resistance in eighteenth-century
Virginia. NY : Oxford University Press, 1972.
Nelson, William Edward. Americanization of the Common Law : the impact of legal
change on Massachusetts society, 1760 - 1830. Cambridge, MA : Harvard
Unioversity Press, 1975.
Ostrogorsky, George. History of the Byzantine State (1940). Tranlated from the German
by Joan Hussey, with a forward by Peter Charanis. New Brunswick, NJ : Rutgers
University Press, 1957.
Robinson, Donald L. Slavery and the Structure of American Politics, 1765 - 1820. NY:
Harcourt, Brace Jovanovich, 1971.
Rose, Willie Lee Nichols. A Documentary History of Slavery in North America. NY:
Oxford University Press, 1976.
Watson, Alan. Roman Slave Law. Baltimore : Johns Hopkins University Press, 1987.
Whitefield, Theodore Marshall. Slavery Agitation in Virginia, 1829 - 1832. NY : Negro
Universities Press, 1930.
James vander Zanden. Sociology : the Core. NY : McGraw - Hill., 1986.
A slave auction in which black families were often broken up when sold to slave buyers.
